[Federal Register: June 20, 2003 (Volume 68, Number 119)]
[Notices]
[Page 36979-36980]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20jn03-57]
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DEPARTMENT OF EDUCATION
Arbitration Panel Decision Under the Randolph-Sheppard Act
AGENCY: Department of Education.
ACTION: Notice of arbitration panel decision under the Randolph-
Sheppard Act.
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SUMMARY: The Department gives notice that on April 30, 2002, an
arbitration panel rendered a decision in the matter of Thomas T. Massa
v. New York State Commission for the Blind and Visually Handicapped
(Docket No. R-S/00-6). This panel was convened by the U.S. Department
of Education, under 20 U.S.C. 107d-1(a), after the Department received
a complaint filed by the petitioner, Thomas T. Massa.
SUPPLEMENTARY INFORMATION: Under section 6(c) of the Randolph-Sheppard
Act (the Act), 20 U.S.C. 107d-2(c), the Secretary publishes in the
Federal Register a synopsis of each arbitration panel decision
affecting the administration of vending facilities on Federal and other
property.
Background
This dispute concerns the alleged improper removal of complainant,
Mr. Thomas T. Massa, from the Randolph-Sheppard vending facility
program by the New York State Commission for the Blind and Visually
Handicapped, the State licensing agency (SLA), in violation of the Act
(20 U.S.C. 107 et seq.) and the implementing regulations in 34 CFR part
395.
A summary of the facts is as follows: Complainant was licensed by
the SLA on July 28, 1995. In 1996, he was assigned to operate and
manage a vending facility at the U.S. Customs House, 6 World Trade
Center in New York City, New York.
On August 3, 1998, complainant alleged that he informed the SLA
that he was experiencing a severe financial crisis resulting from theft
of lottery tickets and from difficulties with the SLA's accounting and
recordkeeping procedures. On August 28, 1998, a State lottery official
notified complainant that he had an outstanding balance of $7,558.34
and would be responsible for making weekly payments over a period of 24
months to pay off the balance.
After receiving complainant's notification of his financial status,
the SLA conducted a facility review. The SLA determined that there were
record keeping lapses but nothing to explain the severity of
complainant's financial situation. Subsequently, on September 3, 1998,
the SLA informed complainant that effective September 18, 1998, he was
being removed as the manager of the U.S. Customs House vending facility
and that his vending operator's license was being revoked effective
October 9, 1998.
Complainant requested and received a full evidentiary hearing,
which was held on December 4, 1998, March 3, 1999, and September 13,
1999. On May 30, 2000, an Administrative Law Judge (ALJ) rendered a
decision affirming the SLA's termination of complainant's vending
operator's license and removal from his vending facility. The SLA
adopted the ALJ's decision as final agency action.
Later, complainant filed for a Federal arbitration hearing alleging
that the SLA failed to provide due process to him regarding his removal
from the U.S. Customs House vending facility and the revocation of his
vending operator's license as provided by the Act and implementing
regulations. A hearing on this matter was held on July 26, 2001.
Arbitration Panel Decision
The issue heard by the panel was whether the actions taken by the
New York State Commission for the Blind and Visually Handicapped to
terminate complainant's vending operator's license and his removal from
the U.S. Customs House vending facility were in accordance with the
Act, implementing regulations, and State rules and regulations.
After reviewing the record, the arbitration panel concluded that
the SLA had made the decision to remove complainant at the initial
steps of the State fair hearing process. As a result, the SLA's
decision to revoke complainant's vending operator's license occurred
prior to the State fair hearing. In addition, the panel determined that
complainant had successfully completed vending facility management
training 2 years prior to the first signs of problems at his vending
facility. Also, the panel found that neither the complainant nor the
SLA were able to explain the cause, source, or reason for the alleged
violations in complainant's recordkeeping.
Based upon the foregoing, the panel ordered the SLA, within 3
months of the panel's decision, to reinstate Mr. Massa to a vending
facility or to another job available through the SLA and previously
determined to be suitable by the complainant.
Concerning over $7,500 allegedly owed to the SLA by Mr. Massa from
the sale of lottery tickets, the panel ruled that had complainant
continued as a vending facility manager prior to the State fair
hearing, he might have been able to make weekly installment payments to
the SLA. Therefore, the panel ruled that complainant should pay the SLA
$4,500, less payments already made by him, when and if he is reinstated
to gainful employment.
Finally, the panel ruled that if Mr. Massa elects not to follow the
remedy in the panel's decision or chooses to refuse an opportunity of
employment offered to him by the SLA, then his complaint should be
dismissed. However, in that event, his obligation to reimburse the SLA
still remains.
One panel member dissented.
The views and opinions expressed by the panel do not necessarily
represent the views and opinions of the U.S. Department of Education.
FOR FURTHER INFORMATION CONTACT: You may obtain a copy of the full text
of the arbitration panel decision from Suzette E. Haynes, U.S.
Department of Education, 400 Maryland Avenue, SW., room 3232, Mary E.
Switzer Building, Washington, DC 20202-2738. Telephone: (202) 205-8536.
If you use a telecommunications device for the deaf (TDD), you may call
the TDD number at (202) 205-8298.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed in the preceding
paragraph.
Electronic Access to This Document
You may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or Adobe
Portable
[[Page 36980]]
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.
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Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register and the Code of Federal
Regulations is available on GPO Access at: http://www.access.gpo.gov/nara/index.html
.
Dated: June 17, 2003.
Robert H. Pasternack,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 03-15616 Filed 6-19-03; 8:45 am]
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